Impaired / Over 80

DUI is defined as the act of driving while under the influence of alcohol or drugs. There are three main types of DUI offences:

Operating a motor vehicle at or over 80 within two hours of driving
Impaired Driving
Refusing to provide a breath sample

A charge of impaired driving means operating a vehicle (including cars, trucks, boats, snowmobiles and off-road vehicles) while your ability to do so has been compromised by consuming alcohol, drugs, or a combination of the two.

Over 80
For fully licensed drivers across Canada, the maximum legal blood alcohol concentration (BAC) is 80 milligrams of alcohol in 100 millilitres of blood, or 0.08. Driving with BAC at or over 0.08 is a criminal offence with serious consequences and penalties. Some of the consequences can include license suspension, vehicle impoundment, fines, a criminal record and possible incarceration.

Impaired Driving
Those charged with impaired driving do not have to submit a breathalyzer or blood test result. Police can build their case based on factors such as whether drugs were found in the car or whether the person failed sobriety tests during their arrest.

Refusal/Failure to Provide a Breath or Blood Sample
Refusing to provide a breath or blood sample constitutes an offence. If convicted, your driver’s license will be suspended for 12 months.

Penalties For DUI Convictions
A DUI conviction carries mandatory minimum sentences. These are punishments that must be imposed upon conviction. If you are convicted of a DUI, you must undergo the following mandatory minimum sentences:

Mandatory 90-day license suspension
First-time offenders will receive a fine of $1,000.00
Second-time offenders will receive 30 days in prison
Third-time offenders will receive 120 days in prison

Winning your drinking and driving case means: keeping your driver’s license, avoiding a criminal record, protecting against increased insurance costs, preventing problems crossing the US border and preserving your reputation in the community.

Other Driving Related Offences
Impaired and over 80 are the most common types of driving related offences. There are other driving related offences with similar penalties such as:

Dangerous driving
Flight from police
Fail to remain
Criminal negligence causing death/bodily harm

The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of impaired driving related allegations. If you or someone you know has been charged with impaired operation, over 80, failure to provide a breath or blood sample, dangerous driving, criminal negligence causing death/bodily harm, flight from police or fail to remain you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.

Common Questions Regarding Impaired Driving and Exceed/Over 80

What Is the Difference Between Impaired Driving and Exceed/Over 80?

Impaired driving (DUI) and excess blood alcohol (‘over 80’) are distinct but related charges.

Impaired driving is focused on the impact that alcohol or drugs is having on the individual. Typically, the Crown will call witnesses who will testify as to the various physical symptoms and driving behaviour demonstrated by the accused in and around the time of driving, such as:

Bad driving (ie. weaving)
A motor vehicle accident
Odour of alcohol on the breath (this alone does not mean the accused is impaired, but merely that she or he potentially has been drinking at some point)
Bloodshot and/or watery eyes (this alone means little)
Unsteadiness, balance problems, walking problems, coordination problems
Slurred speech

‘Over 80’ only deals with the amount of alcohol in the individual’s blood stream. If you provide two samples into a breathalyzer and the result is 80 mg or above of alcohol in 100 ml blood, you will be charged with this offence. It is possible to be charged with ‘over 80’ even though you are not driving impaired.

But I was Not Drinking? – Impaired by drugs

As with impaired driving, if the police suspect that there may be drugs in your body, they are allowed to demand that you perform physical coordination tests to enable them to determine whether further testing for the presence of drugs is warranted.

If the physical coordination tests are done in a manner that provides the police with reasonable grounds to believe that you might be impaired by drugs, or a combination of drugs and alcohol, they are entitled to demand a sample of your saliva, urine, or blood so that they can test for the presence of drugs in your body.

The physical coordination tests are conducted by a drug recognition expert (DRE). A DRE is a member of the police force who has completed special training to be able to properly assess whether a person is impaired by drugs using accepted medical knowledge and standardized field sobriety tests.

The physical coordination tests that a DRE administers must comply with the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. The regulations outline a 12-step evaluation that consists of the police taking measurements of your pulse, blood pressure, and temperature. The police will also conduct eye examinations, tests for balance, and visual examinations of your exposed body for injection sites. If at the end of the tests the police have gained reasonable grounds to believe that you are impaired by drugs, they are lawfully entitled to demand that you provide them with a sample of your saliva or urine, which will enable them to test for the presence of drugs in your body. In some circumstances, the police may also demand that you provide a sample of your blood for this purpose.

If you refuse to submit to any of the tests that the police officer or DRE demands of you, you will likely be charged with refusal, another criminal offence. If charged and convicted of refusal, you will be subject to a mandatory minimum fine of $1000 and a mandatory minimum licence suspension of one year. If this is not your first impaired driving offence, the penalties can increase, and in some circumstances, you can even be liable for time spent in jail.

I was not Driving – Care and Control

An individual is “presumed” to be in care and control of a motor vehicle “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle”. This presumption applies unless “the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle… in motion”.

In order to rebut this presumption, typically a person will have to testify, leading evidence of an alternative intention of entering the vehicle such as waiting for a friend to pick them up or using the vehicle for warmth until some alternate means of transportation is available (such as a taxi). There are also potential defences arising out of scenarios which involve “no risk of danger” and “inoperable vehicles” but this area of the law is very technical.

There are a number of defences to the charge of being in care and control of a motor vehicle including: “no risk of danger”, “the alternate plan”, and “inoperable vehicle”; however, every case is unique and will impact which defences are available.

What is a Roadside Screening Device?

A screening device is a machine often used by the police at the roadside to determine if you have alcohol in your body. The screening device is an investigative tool used by the police in situations where they may not have the grounds to arrest you for Impaired Driving or Driving Over 80.

According to s. 320.27(2) of the Criminal Code, if a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

If a device is not in the peace officer’s possession, the officer must reasonably suspect you have alcohol in your body. If the officer smells an odour of an alcoholic beverage emanating from your breath or you have admitted to recently consuming alcohol, the officer will have sufficient grounds to make a demand.

While the screening device measures blood alcohol levels, it only provides three possible results: pass, warning, and fail. A properly calibrated screening device will register a pass when your blood alcohol is below 50 mg of alcohol per 100 mls of blood. Between 50 and 80, the screening device should register a warning. A reading greater than 80 should register a fail, giving the officer the grounds to arrest you for Driving Over 80.

The screening device does not provide proof of the Drive Over 80 offence. It only provides the grounds for the officer to arrest you for Driving Over 80 and make a “breathalyzer” demand. The “breathalyzer” is similar to a screening device but provides your actual blood alcohol measurement. The results of a “breathalyzer” can be used to convict you of Driving Over 80.

If the screening device or “breathalyzer” was not a model approved by Parliament, was not tested or calibrated correctly, or if the officer that operated the “breathalyzer” was not a qualified breath technician, you may have a possible defence to your Impaired Driving charge.

What is a Breath Demand?

If an accused is arrested for impaired driving and/or fails an approved roadside screening device test, the police will then read a breath demand to provide breath samples into either the intoxilyzer or breathalyzer. The accused will usually be brought to the police station. Breathalyzers or intoxilyzers are prepared by a ‘breath technician’ who has been trained to operate these scientific instruments.

Within a two-hour period of the time of driving or ‘as soon as practicable’, the accused will be required to provide two breath samples into the approved breathalyser. The instrument then analyzes the breath samples and provides an actual blood alcohol reading.

What Is a Breathalyzer or Intoxilyzer Test?

Upon arrest, the police officer would then read a ‘breath demand’ to provide breath samples at the police station. Again, this is a completely different situation from an approved screening device demand. It is not necessary for the police officer to go through the approved screening device demand procedure if they have reasonable and probable grounds that the person is impaired upon observation. Merely exuding an odour of alcohol and perhaps bloodshot and glassy eyes would only lead to a “suspicion” that the person had been drinking and had alcohol in their system It would not lead to reasonable and probable grounds that they are impaired or over the legal limit.

A breathalyzer, or its more recent successor an intoxilyzer, is an instrument utilized by police departments to test the blood alcohol level of an individual who has been detained for impaired driving as a result of alcohol consumption. If the maximum blood alcohol limit of 80 milligrams of alcohol in 100 millilitres of blood (0.08) is exceeded, the arrest and charge for impaired driving of an individual by the police will be warranted. The test is also admissible in the event that the individual fails an approved roadside-screening device test administered to them. Unlike the approved roadside-screening device (ASD), the breathalyzer/intoxilyzer test are conducted by a “breath technician” who has been trained to operate the instrument. It is vital that the instrument is managed by a technician as, while it is perceived to be a fairly accurate means of calculating the blood alcohol level of an individual, they are not 100% accurate. In the event that there was a fault on the part of the technician or the machine was not maintained nor calibrated as it should be or the test was not administered correctly, the results of the reading may be affected.

What Happens if I Refuse or Fail to Provide a Sample into an ASD or the Intoxylizer?

If a person refuses or fails to comply with the breath demand by, for example saying “no” or faking blowing, etc., they will then be charged with refusing or failing to comply with a breath demand or providing a breath sample.

To prove the charge of refusal, the Crown will be required to prove beyond a reasonable doubt that the refusal to provide a breath sample or failure to comply was ‘final and unequivocal’. If proven, the defence can raise a ‘reasonable excuse’ for not providing a sample.

Generally, a person who is under arrest should always comply with a demand to provide breath samples. Although there are occasionally exceptions to the general rule, the advice that an experienced DUI lawyer will always provide to a detainee/person under arrest is that they should always provide a breath sample upon demand. It is too risky to refuse to provide a breath sample and hope your case turns out “after the fact” to be one of the narrow exceptions.

Do the Police Need to Conduct an ASD before Arresting me?

No. The police do not need to complete a roadside screening device test before they can arrest you. If the police have reasonable and probable grounds to arrest a person for operation a motor vehicle while impaired, they did not need to conduct an ASD.

An ASD is used to help police establish reasonable and probable grounds. A failure on an ASD, along with other indicia of impairment, would be used to determine if a police officer has the necessary grounds to arrest the individual.

If you were immediately arrested, or arrested after failing an ASD, you can challenge both results. The Criminal Code puts strict limits on police powers when they are investigating impaired driving offences. If they police do not follow these requirements, you can allege that your Charter rights were breached which could lead to the result of the exclusion of your breath sample and your acquittal. Charter arguments alleging breaches of unreasonable search and seizures are common in impaired driving cases.

Common Defences to DUI Charges

Defences for impaired charges can include issues such as the following:

Improper arrest of the accused
Improper reading of the breath samples
Improper collection of evidence against the accused
Violation of the rights of the accused to speak with a lawyer in privacy
Violation of the rights of the accused to have a trial in a timely manner
Mistakes on the part of the arresting officer
Incongruencies in the documentation by the police
The prosecution being unable to prove the case beyond a reasonable doubt

It is the responsibility of the prosecutor and the police to prove that the accused is guilty of the charges against them.

What Happens to my car if I get charged with Impaired Driving related offence?

Once you are arrested for impaired driving, the vehicle you were operating will be towed and kept at the police impound for a period of 7 days.

Note: it is irrelevant that the car was registered to someone else, the car operated by the person charged with impaired driving will be impounded.

After 7 days, the car can be picked up from a police impound. You will be responsible for the fees associated with the storage of the car over the 7 days.

Will I Lose my Driver’s License? – Consequences for Impaired Driving

In Ontario, when you are charged with impaired driving, ‘over 80’, or refusal, you will immediately face the following consequences:

90-day licence suspension
7-day vehicle impoundment
$275.00 licence reinstatement fee

If convicted after trial, or if you pleaded guilty, these are some of the common consequences you will face:

$1,000.00 fine (for first offence), 30 days jail (for second offence), 120 days (for third offence)
Licence suspension of at least 1 year (for first offence)
The installation of the Ignition Interlock Device (at your own expense)
Being required to attend the Ministry of Transportation “Back on Track” assessment or the assessment and the Educational or Treatment Programs
Massive insurance increases
A criminal record (which may limit your employment prospects)
Your ability to travel internationally could be affected
Possible immigration-citizenship consequences

Will my License Still be Suspended Even if I Complete Substance Abuse Counselling?

A mandatory minimum sentence means that neither the Crown nor the Court have the discretion to prescribe a lesser sentence regardless of the upfront work you complete Although the court will commend you for taking steps to better yourself, the upfront work and/or counselling you do will not be able to reduce your sentence to anything lower than the mandatory minimum as prescribed by the law.

How do I Install the Interlock Device?

You will need to contact one of the government-approved interlock service providers to schedule an appointment with them. The companies will also be able to advise you of the cost. You will be responsible for paying the cost of the device.